FEDERAL COURT OF AUSTRALIA

CZBH v Minister for Immigration and Border Protection [2014] FCA 1023

THE COURT ORDERS THAT:

1.    The appeal is allowed.

2.    The orders of the Federal Circuit Court of Australia made on 20 December 2013 are set aside.

3.    The decision of the second respondent made on 1 May 2012 is quashed.

4.    The second respondent determine the appellants’ application for review of the decision of the first respondent’s delegate made on 18 November 2011 according to law.

5.    The first respondent pay the appellants’ costs of the application to the Federal Circuit Court of Australia and the costs of the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    The appellants have appealed to this Court against a judgment of the Federal Circuit Court of Australia (“the Circuit Court”). The Circuit Court dismissed the appellants’ application for certiorari and mandamus in respect of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal had affirmed a decision of the first respondent’s delegate not to grant each appellant a Protection (Class XA) visa.

2    The appellants submit that the Circuit Court erred by failing to find that the Tribunal fell into jurisdictional error. They allege that there was apprehended bias on the part of the Tribunal and, in addition, that the Tribunal wrongly refused to obtain the oral evidence of two witnesses and then wrongly rejected their statements as being untruthful.

3    In order to place these grounds in context, it is necessary to set out something of the background and history of the litigation.

Background

4    The appellants are each citizens of Pakistan. The first appellant is the wife of the second appellant. It is convenient to refer to the first appellant as “the wife” and the second appellant as “the husband”.

5    The wife’s evidence to the Tribunal was that she came from a “backward and conservative” part of Pakistan. There was conflict within her extended family. Her father moved his immediate family to Islamabad in 1979 as a result of the family problems.

6    The wife claimed that her uncle wanted her to marry her cousin. She and her father rejected the proposal, which led to threats against her parents.

7    The wife met the second appellant in 2002 and they began a sexual relationship in 2004. They decided to get engaged, but had to wait until January 2005 when they secured their parents’ blessings to get married. They were married on 7 July 2007.

8    The wife claimed that after she became engaged, her uncle threatened her family and her fiancÉ. The uncle threatened to kidnap her and force her to marry someone else. She stated her family were forced to move to another house to avoid the ongoing threats. She stated that after her marriage she received many threatening calls. The husband was then living with his family in Australia and he arranged for his wife to join him in August 2008.

9    The wife returned to Pakistan on 1 October 2010. She stated that in Pakistan she again received death threats and threats of kidnapping. As a result, she returned to Australia on 10 December 2010. The appellants claimed that they could not return to Pakistan because they fear life-threatening harm from the wife’s extended family.

10    The wife claimed that she fears persecution because of her nationality or membership of a particular social group in the absence of effective state protection. She submitted that a “love marriage” is taboo in her country and violates family expectations. She stated that the particular social group she belonged to was “a person who is in a forbidden love marriage relationship and is therefore vulnerable to violent reprisals”. She also claimed she and her husband face serious harm from family or conservative elements in Pakistani society because they had a sexual relationship before their marriage.

The delegate’s decision

11    The appellants applied for Protection (Class XA) visas on 25 July 2011. The application was also in respect of their children. The first respondent’s delegate decided on 18 October 2011 to refuse to grant the visas because the appellants were not persons to whom Australia has protection obligations under the Convention Relating to the Status of Refugees (1951) (“Convention”). The basis of the decision was that the harm feared by the appellants was not related to a Convention ground.

The Tribunal’s hearing

12    On 9 November 2011, the appellants applied to the Tribunal for a review of the delegate’s decisions. The Tribunal invited the appellants to attend an oral hearing to be conducted by video link on 21 March 2012. The appellant’s legal advisor completed and returned a form entitled “Response to Hearing Invitation”. In that form, the advisor requested that the Tribunal take oral evidence from the father of each of the appellants and gave a very brief description of their evidence and its relevance. The advisor provided telephone numbers at which the fathers could be contacted.

13    On 20 March 2012, the day before the oral hearing, the appellants’ legal advisor provided to the Tribunal a written submission accompanied by a number of documents. Amongst those documents was a statement from the father of the husband who said that his son had a love marriage and that both families were initially against the marriage. The father said that there had been threats over the telephone, the caller saying that his son had acted against Sharia law. He said that the caller would not hesitate to commit murder and that the future of his son was very dark.

14    A statement from the wife’s father was also provided to the Tribunal. He stated that initially the immediate families of the appellants were not in favour of the marriage, but they eventually agreed to arrange the marriage. He said that when the marriage came to the attention of his extended family, they threatened to kill the appellants because the marriage was against Sharia law. The extended family threatened that the appellants should be presented before a Jirga (a tribal council) so that they may be punished by death. He stated that after his daughter left for Australia, he received telephone calls from unknown people who threatened that if she returned to Pakistan she would be killed. He gave details of two such telephone calls.

15    I propose to describe only the aspects of the hearing that are relevant to my decision. In light of the decision that I propose to make, it is unnecessary for me to describe the hearing in more detail.

16    The hearing was conducted with the assistance of an interpreter in the Urdu language. A recording of the hearing and a transcript was placed before the Court. During the early part of the hearing, the Tribunal member said:

I see that you’ve made a request that I [telephone] your family overseas and take evidence from them. I will see how we go with you in the hearing and then I’ll determine whether I will take evidence from them or not. I’ve got the Department file with the protection visa application and the delegate’s decision. This file also has the interview you had with the delegate. I have read everything on that file and listened to the interview. I have also got our file with the review application including the 30 odd page submission that we received today from your lawyer so I’ve read everything on this file as well.

17    The hearing took about 1½ hours. Towards the end of the hearing, the Tribunal member said that he was not going to ring the fathers. Accordingly, the Tribunal declined to obtain oral evidence from the fathers. The Tribunal member also said that if the appellants wanted him to consider evidence from the fathers, they should put something in writing and submit it. This statement indicates that the Tribunal member was unaware that the appellants had already submitted statements from their fathers. It seems to contradict the Tribunal member’s earlier statement that he had read everything on the Tribunal’s file.

18    On 23 March 2012, the appellants’ solicitors wrote to the Principal Member of the Tribunal enclosing a letter of complaint from the appellants about the conduct of the hearing. They alleged that the Tribunal member was ill-prepared and biased and did not give them a fair hearing. They alleged, amongst other things, that it appeared that the Tribunal member had not read the statements from the fathers and was discourteous, threatening and intimidating. They complained that he was impatient and abrupt and did not give them an opportunity to properly present their evidence. The Principal Member responded that he considered that there was no substance to the complaint.

19    Subsequently, the solicitor for the appellants submitted that the Tribunal member should withdraw from the case on the basis of perceived bias. That submission was rejected. The appellants then made further written submissions.

The Tribunal’s decision

20    On 1 May 2012, the Tribunal decided that the appellants were not persons to whom Australia has protection obligations under the Convention and that they therefore did not satisfy the criteria set out in s 36(2)(a) and (b) of the Migration Act 1958 (Cth) for the grant of a protection visa.

21    In its reasons, the Tribunal concluded that the appellants had fabricated their claims. It held that the appellants exaggerated the extent to which their families and Pakistani society objected to their relationship and marriage. The Tribunal took into account that, although the appellants commenced their relationship in 2002 and married in 2007, they continued to reside in Pakistan until 2008 and the wife returned to Pakistan for a lengthy visit in 2010. The Tribunal formed the view that if the wife’s extended family wanted to harm her because of her relationship and marriage to her husband, they had sufficient time and opportunity to do it while she was in Pakistan. The Tribunal found that the relationship did not attract the adverse interest of the wife’s extended family. It found that the appellants did not seek protection in Australia for a considerable period of time after they arrived because they did not face serious harm in Pakistan.

22    The Tribunal also found that the appellants would not face serious harm in Pakistan on the basis that they had a sexual relationship before marriage. It found that the appellants exaggerated the risk that they faced in Pakistan for this reason in order to enhance their application.

23    The Tribunal considered the statements from the appellants’ fathers, which the Tribunal said essentially supported the appellants’ claims that they faced life-threatening harm in Pakistan because of their marriage. However, the Tribunal concluded that in view of its findings that the appellants’ claims were contrived to enhance the application, this supporting evidence was also contrived to enhance the application.

24    The Tribunal accepted that marriage within the family is culturally desirable in Pakistan and it accepted that the appellants did not have such a marriage. It found, however, that the appellants’ relationship and marriage was not a controversial “love marriage” because the relationship proceeded with the consent and blessings of their parents. The Tribunal was satisfied that obtaining parental approval was the most significant requirement for a marriage to proceed. It was satisfied that the marriage conformed to cultural expectations of Pakistani society because it proceeded with the consent and approval of the parents. The Tribunal found that the appellants’ relationship did not attract the adverse interests of their families or society in Pakistan and it was not satisfied that they faced a real chance of persecution for reasons of nationality, membership of a particular social group or any other Convention reason.

The Circuit Court’s decision

25    Before the Circuit Court, the appellants raised seven grounds. Five of these are not relevant to the appeal to this Court, and need not be considered. The remaining grounds were that the Tribunal displayed apprehended bias and that the appellants were denied procedural fairness by the Tribunal refusing to take the fathers’ oral evidence and then finding that their statements were contrived.

26    As to the appellants’ ground of apprehended bias, the Circuit Court accepted the first respondent’s submission that the Tribunal was required only to keep an open mind, not an empty one. It accepted that the Tribunal was required to inform the appellants of the issues which concerned it. By expressing doubts about the credibility of the appellants, the Tribunal was doing no more than informing the appellants about those issues and inviting them to comment. While the Tribunal member had expressed irritation and exasperation at times, the hearing was not conducted in a manner that was deliberately rude and designed to cause offence. The Circuit Court concluded:

20.    …[I]t is a border-line case, and it is reasonably arguable that the [appellants] have made out their case.

21.    In my view, the hearing was less than perfect. It was certainly not optimal. It should not be taken as a guide for how hearings should be conducted in the future. Indeed, in all likelihood, I suspect that most Australians would not be overly impressed with the processes involved were they to be properly apprised of them, or with the conduct of this particular case. But that is not the criterion here. According to the terms of the Act…and relevant authority, the claims of the [appellants], in my view, fall short (even if only just) of establishing the errors for which they contend.

27    It may be seen that the Circuit Court rejected the ground of apprehended bias.

28    The second relevant ground, as argued, went further than just alleging denial of procedural fairness. It relied on several cases which found that a refusal to obtain the oral evidence of a witness could amount to jurisdictional error for other reasons, including that there must be genuine consideration of the request. The Circuit Court’s reasons for rejecting that argument were brief. It said:

92.    In my view, while I accept the [appellants’] contention that the Tribunal member clearly was either unaware of or had forgotten that statements from the [appellants’] fathers were on the Tribunal file, the fact that (a) the [Tribunal member] said that he would consider anything in writing later, and (b) clearly did so, from a procedural perspective, this does not give rise to jurisdictional error. While the hearing, in my view, was less than optimal one, the failure here (such as it might be) on the part of the [Tribunal member] was later remedied by the consideration of the statements referred to.

29    I interpret the Circuit Court’s reasons as meaning that the Tribunal had not committed jurisdictional error by refusing to receive the fathers’ oral evidence in circumstances where it said it would, and did, consider written statements. It is not apparent that the Circuit Court considered the submission that the Tribunal’s finding that the statements were contrived was unfair in circumstances where the Tribunal had refused to take the oral evidence.

Consideration

30    The appellants’ notice of appeal contains two grounds. The first ground alleges that the Circuit Court erred in finding that the Tribunal’s apprehended bias had been cured by giving the appellants the opportunity to provide written submissions after the hearing. That ground contains an assumption that the Circuit Court made a finding of apprehended bias on the part of the Tribunal. That assumption is patently unfounded, and the appellants eventually shifted their focus to argue that the Circuit Court erred in failing to find that there was apprehended bias on the part of the Tribunal.

31    The appellants’ second ground of appeal is that the Circuit Court failed to deal with the appellants’ argument that the Tribunal denied the appellants natural justice by refusing to hear the oral evidence of the appellants’ fathers and then finding that their written statements were contrived to enhance the application. The appellants’ case as argued also departed from the way this ground was pleaded. They argued that s 426(3) required the Tribunal to explain why it had decided not to obtain the oral evidence. Their case as argued also incorporated their written submissions made to the Circuit Court in which they argued that the Tribunal had acted capriciously. The first respondent submitted that these arguments were not raised before the Circuit Court and that leave is required to raise them before this Court. I am satisfied that the appellants raised at least the argument that the decision not to obtain oral evidence was capricious. To the extent that leave is otherwise required, I would grant the appellants leave as only issues of law, not fact, are raised, the first respondent has had an opportunity to deal with the arguments and there is ultimately some merit in the arguments: cf. VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158 at [48].

32    It is convenient to commence with the second tranche of the appellants’ arguments.

33    The first respondent argued that, contrary to the appellants’ assertion, the Tribunal made no decision to refuse to consider the fathers’ evidence. The first respondent submitted that the appellants’ argument therefore fails at a factual level. I consider that the Tribunal clearly declined to obtain oral evidence from the fathers (see the passages at [47] and [48] of these reasons). It makes no difference to the appellants’ argument whether the Tribunal is characterised as having refused or declined to obtain the oral evidence. What is relevant is that the Tribunal exercised its discretionary powers against obtaining the fathers’ oral evidence.

34    Division 4 of Part 7 (ss 422B to 429A) of the Migration Act deals with the conduct of reviews by the Tribunal.

35    Section 425(1) provides that the Tribunal must invite an applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review.

36    Section 425A(1) requires the Tribunal to give an applicant notice of the time, date and place of the hearing. Section 426 provides:

426    Applicant may request Refugee Review Tribunal to call witnesses

(1)    In the notice under section 425A, the Tribunal must notify the applicant:

(a)    that he or she is invited to appear before the Tribunal to give evidence; and

(b)    of the effect of subsection (2) of this section.

(2)    The applicant may, within 7 days after being notified under subsection (1), give the Tribunal written notice that the applicant wants the Tribunal to obtain oral evidence from a person or persons named in the notice.

(3)    If the Tribunal is notified by an applicant under subsection (2), the Tribunal must have regard to the applicant’s wishes but is not required to obtain evidence (orally or otherwise) from a person named in the applicant’s notice.

37    The appellants notified the Tribunal in accordance with s 426(2) that they wanted it to obtain oral evidence from their fathers.

38    Section 427(1)(a) gives the Tribunal the power to take evidence on oath or affirmation. Section 427(5) provides that the oath or affirmation to be taken or made is an oath or affirmation that the evidence the person will give will be true. Section 428(1) allows the power of the Tribunal to take evidence on oath or affirmation to be exercised by another person who is authorised in writing by the Tribunal to do so. Section 428(2) provides that the power under s 428(1) may be exercised inside or outside Australia. Section 429A provides that the Tribunal may allow evidence to be given by telephone, closed-circuit television or any other means of communication.

39    The critical provision in this appeal is s 426(3). In VJAF v Minister for Immigration & Multicultural and Indigenous Affairs [2005] FCAFC 178 at [23] the Full Court said the effect of s 426(3) is that the Tribunal is empowered to obtain oral evidence but is not required to do so. That provision confers a discretionary power upon the Tribunal, but specifies a consideration to be taken into account in the exercise of the discretion. The relevant consideration is an applicant’s wishes. The power is to decide whether or not to obtain oral or other evidence from the nominated person.

40    In Minister for Immigration & Multicultural & Indigenous Affairs v Maltsin [2005] FCAFC 118, Kenny and Lander JJ considered the analogues of s 426(2) and (3) applying to the Migration Review Tribunal. Their Honours said:

37    It is in keeping with the Tribunal’s inquisitorial nature that the Tribunal does not err if it decides that, notwithstanding the applicant wants oral evidence to be obtained from persons named in a notice under s 361(2), it decides not to obtain such evidence, always providing that it acts in conformity with s 361(3) of the Act and has regard to the notice that the applicant has given. In this circumstance, there is no obligation on the Tribunal to take oral evidence from anyone other than the applicant.

38    It does not follow from this, however, that the appeal in this case should be upheld. By virtue of s 361(3), the Tribunal is obliged to have regard to any notice given by an applicant under sub-ss 361(2) or (2A) of the Act. This means that the Tribunal must genuinely apply its mind to the contents of the notice and, in particular, to the question whether it should take the oral evidence of the nominated individuals in accordance with the applicant’s wishes. The Tribunal must not merely go through the motions of considering the applicant’s wishes as expressed in the notice. As the respondents’ counsel said, the authorities establish that the invitation to appear before the Tribunal must be “real and meaningful and not just an empty gesture”. It follows that the consideration that the Tribunal gives to the wishes of the applicant concerning the evidence to be taken at the hearing must also be genuine. The Tribunal must not decline to comply with the applicant’s wishes capriciously, but must take account of such relevant matters as the relevance and potential importance to the outcome of the review of the evidence that could be given by a nominated witness, the sufficiency of any written evidence that has already been given by a witness, and the length of time that would afford the applicant a fair opportunity to put his or her case before the Tribunal. These considerations flow from the nature of the Tribunal’s overarching objective, which is to provide a review that is “fair, just, economical, informal and quick”: see s 353(1). The Tribunal must bear in mind this statutory objective when considering the weight to be given these matters.

[citations omitted.]

41    In Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, Hayne, Kiefel and Bell JJ held at [63]:

The legislature is taken to intend that a discretionary power, statutorily conferred, will be exercised reasonably.

42    Their Honours explained that legal unreasonableness can be a conclusion reached by a supervising Court without identification of an underlying jurisdictional error. Their Honours held at [76]:

[I]t was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion “if upon the facts [the result] is unreasonable or plainly unjust”. The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.

[citations omitted.]

43    In Minister for Immigration and Border Protection v Singh (2014) 139 ALD 50, the Full Court said at [45]:

In circumstances where no reasons for the exercise of power, or for a decision, are produced, all a supervising court can do is focus on the outcome of the exercise of power in the factual context presented, and assess, for itself, its justification or intelligibility bearing in mind that it is for the repository of the power, and not for the court, to exercise the power but to do so according to law.

44    Section 426(3) requires that the Tribunal give genuine consideration to an applicant’s wish that the Tribunal obtain oral evidence from a nominated witness. Section 426(3) also requires that the Tribunal exercise its discretionary power reasonably. The two requirements overlap. They overlap at least where a decision not to obtain oral evidence is made arbitrarily or capriciously.

45    The appellants’ solicitor had given notice to the Tribunal pursuant to s 426(2) that the appellants wanted the Tribunal to obtain oral evidence from each of the fathers. The issue to be considered is whether the Tribunal’s decision not to obtain the evidence was unreasonable, in the sense of lacking an evident and intelligible justification.

46    An appropriate starting point is to examine what, if any, reasons the Tribunal gave for its decision not to obtain the fathers’ oral evidence. It will be recalled that in the early part of the hearing, the Tribunal member alluded to the request and indicated that he would later determine whether he would take the oral evidence or not. The Tribunal member also said that he had read everything on the Tribunal’s file, thereby suggesting that he had already read the fathers’ statements (see [16] of these reasons).

47    Later in the hearing, the Tribunal member indicated that he had decided not to telephone the fathers to obtain their evidence. He said:

I’m not going to ring the parents in Pakistan and in South Africa. If you want me to consider evidence from them, get them to put something to writing and submit it to me when you make your submission.

48    Following the hearing, the Tribunal provided written reasons for its decision. Those reasons assert that at the hearing:

59.    …[The appellants’ advisor] was told that the Tribunal had decided not to telephone the [appellants’] parents overseas as it had their written submissions. The Tribunal indicated that if those witnesses wanted to provide further evidence they could do it in writing by 4 April 2010.

49    Presumably the Tribunal’s reference to the “written submissions” was intended to be to the fathers’ written statements. The Tribunal member’s assertion of what he says he told the appellants’ legal advisor at the hearing does not accord, in two respects, with what he actually told the advisor.

50    Firstly, the Tribunal member did not tell the advisor that he had decided not to telephone the parents “as [he] had their written [statements]”. He did not state any reason for his decision that he was “not going to ring the parents”.

51    Secondly, the Tribunal member did not indicate at the hearing that if those witnesses wanted to provide “further evidence”, they could do it in writing. Instead, the Tribunal member said that if the advisor wanted him to consider “evidence” from the fathers, they should put it in writing. The transcript of the hearing shows that the Tribunal member was quite unaware of the existence of the fathers’ statements. Even though he said that he had read everything on the Tribunal’s file, he had evidently not. It seems likely that the Tribunal member had simply overlooked the statements. The Tribunal’s reasons contain an inaccurate (albeit inadvertent) reconstruction of what was said at the hearing.

52    By the time it provided its reasons, the Tribunal had become aware of the fathers’ statements. It said:

82.    The Tribunal has considered the two letters from the [appellants’] parents, which essentially supports the [appellants’] claims that they face life-threatening harm in Pakistan because of their marriage. However, in view of the above findings that the claims were contrived to enhance the application, the Tribunal finds that this supporting evidence provided by the [appellants] was also contrived to enhance the application.

53    What is apparent is that the Tribunal provided no reasons, whether orally at the hearing or later in writing, for its decision to decline to obtain the fathers’ oral evidence. While the Tribunal was not obliged to provide such reasons, the fact that it did not leaves the exercise of the power unexplained: cf Kaur v Minister for Immigration and Border Protection [2014] FCA 915 at [110] per Mortimer J. It is necessary to examine whether any evident and intelligible justification for its decision can be discerned.

54    In SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294 at [192], Hayne J observed that the review process undertaken by the Tribunal “is a predominantly documentary process”. However, as his Honour noted at [194], s 426 contemplates that the Tribunal may obtain oral evidence (or another form of evidence) from witnesses. The Tribunal has also been given appropriate powers to facilitate the taking of oral evidence from witnesses, including the power to administer an oath or affirmation, the discretion to take oral evidence in person, by telephone or other means, and the power to delegate someone to take oral evidence overseas.

55    The Tribunal’s core function pursuant to s 414(1) is to review decisions of the first respondent or his delegates that fall within s 411(1). Its process is inquisitorial. Its task is to make the correct or preferable decision on the materials before it: Li at [10] per French CJ. Section 426 and the ancillary provisions dealing with the taking of oral evidence recognise that in some cases the opportunity given to an applicant to present the evidence of witnesses in written form may not be enough. The purpose of those provisions must include assisting the Tribunal to arrive at the correct or preferable decision through the advantages that may be conferred by obtaining the oral evidence of witnesses.

56    One of the circumstances evidently contemplated by s 426 is where an applicant has been unable for some reason to obtain a written statement from a witness. Importantly, s 426 must also contemplate that obtaining oral evidence may assist the Tribunal to decide upon the credibility of a witness who has provided a written statement. In Butera v Director of Public Prosecutions (Vic) (1987) 164 CLR 180, Mason CJ and Brennan and Deane JJ held at 189:

A witness who gives evidence orally demonstrates, for good or ill, more about his or her credibility than a witness whose evidence is given in documentary form.

Although that statement was made in the context of considering a criminal trial conducted by a court, it is also true of oral evidence given before a Tribunal which is engaged in an inquisitorial process. In Chen v Minister for Immigration and Ethnic Affairs (1994) 48 FCR 591 at 599 and 602, the Full Court indicated that an oral hearing before the Minister’s delegate may be required where issues of credibility arise. The Tribunal may find oral evidence given under oath or affirmation more persuasive than evidence given by written statement. If oral evidence is obtained by the Tribunal, it will also have the opportunity to test the credibility of the evidence given in any written statement by questioning a witness in the same way that it has the opportunity to test the evidence of an applicant.

57    The appellants had submitted corroborative statements from their fathers. The appellants then asked the Tribunal to obtain their fathers’ oral evidence in the obvious expectation that it would be consistent with the statements. The appellants’ legal advisor had evidently anticipated that the appellants’ credibility would be crucial to the outcome of the case. That was later borne out by the Tribunal’s reasons. The reason why the appellants wished for the Tribunal to obtain the oral evidence, which would be given under oath or affirmation, was to allow the Tribunal to test the evidence of the corroborating witnesses by asking them questions. If the fathers had been believed then it is at least likely that important parts of appellants’ evidence would also be believed.

58    A myriad of factors may influence a Tribunal’s decision to obtain oral evidence or its decision not to do so. These factors include the relevance and importance of the proposed evidence, whether written evidence is sufficient for the Tribunal’s purposes, whether taking the evidence would cause undue delay, the ease or difficulty of contacting the proposed witness and the availability of a suitable interpreter. In an appropriate case, the Tribunal might decide that the evidence of an applicant is so compromised that hearing the oral evidence of a corroborating witness could not affect the outcome: cf Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165 at [49] per McHugh and Gummow JJ.

59    In the present case, there was no obvious practical difficulty for the Tribunal in obtaining oral evidence from the appellants’ fathers. The appellants’ solicitor had provided telephone numbers at which the fathers could be contacted and they were both immediately contactable. An interpreter was available. The oral evidence of the fathers was relevant and potentially important because acceptance of their evidence would have bolstered the appellants’ credibility: cf W360/01A v Minister for Immigration and Multicultural Affairs [2002] FCAFC 211 at [2] per Lee and Finkelstein JJ, at [31] per Carr J. The Tribunal did not make any finding that obtaining the oral evidence of the fathers could not have affected its view of the credibility of the appellants (instead reasoning that if the appellants’ evidence was contrived, so too must have been the written statements from the fathers).

60    The factors outlined above suggest that there were cogent reasons for the Tribunal to obtain the oral evidence of the fathers. As the Tribunal did not explain why it refused to take the oral evidence, it has not identified any countervailing factors. The first respondent did not identify any, but hinted that the Tribunal may have been suspicious that the persons at the other end of the telephone may not have been the appellants’ fathers and that there was no way of verifying who they were. That seems to me to be mere speculation and does not find support in anything said by the Tribunal or in any material before the Tribunal.

61    In these circumstances, no evident and intelligible justification for the Tribunal’s decision not to obtain the oral evidence of the fathers is discernable.

62    It is possible that the Tribunal decided not to take oral evidence at the hearing because it did not realise that the appellants’ fathers had already provided written statements and, therefore, failed to understand that the purpose of the oral evidence was to allow the veracity of the contents of the statements to be gauged. If that was the case, the decision was made as a result of the failure of the Tribunal member to read all the material on the Tribunal’s file. The Tribunal member’s default cannot be regarded as any justification for the decision. In addition, if that was the case, the Tribunal member will not have taken into account the relevance and potential importance of the oral evidence and will, therefore, have failed to give genuine consideration to the appellants’ wishes.

63    In my opinion, the Tribunal’s decision not to obtain the fathers’ oral evidence was legally unreasonable and the Circuit Court erred in finding that the decision was not affected by jurisdictional error.

64    Having reached this conclusion, it is unnecessary and, in my view, undesirable to address the issue of apprehended bias.

65    I do wish to say that I agree with the comments of the Circuit Court judge that the hearing before the Tribunal was not optimal and should not be taken as a guide for how hearings should be conducted in the future. One aspect of the conduct of the hearing that was not optimal was the Tribunal’s apparent attempt to comply s 424AA, which requires the Tribunal to orally give an applicant clear particulars of any information that the Tribunal considers would be a reason for affirming the decision under review, and to orally invite an applicant to comment on or respond to the information. The Tribunal did this by delivering lengthy monologues, broken only by the interpreter, conveying a number of pieces of information at once, and asking for the appellants’ comments at the end. To realise this was unfair, the circumstances need only be considered. The appellants were in a strange and pressurised situation of giving evidence through an interpreter concerning matters of great importance to them. Each piece of information reflected a reason why the Tribunal might affirm the decision under review. Yet they were being asked to absorb and address all of those pieces of information at once. A fairer way to proceed would have been to put to the appellants each piece of information and to seek their responses one at a time, even though that would have taken more time. The Tribunal’s compliance with s 424AA is not just a matter of going through the motions. Section 422B(3) requires the Tribunal to act in a way that is fair.

66    The appeal should be allowed and the judgment of the Circuit Court should be set aside. The Tribunal’s decision to affirm the first respondent’s delegate’s decision should be quashed and the Tribunal should be required to consider the appellants’ application for review according to law. The appellants should have their costs of the appeal and the proceeding below.

Associate:

Dated:    24 September 2014